“Stochastic Terrorism”: Did The Four Dissenting Justices In Gay Marriage Case Just Suggest Treason?
In controversial cases, is the role of jurist to inflame controversy, or quell it?
In Loving v. Virginia, the 1967 case which found race-based marriage bans unconstitutional, Chief Justice Earl Warren built a 9-0 consensus—just as he’d done years earlier in Brown vs. Board of Education. He knew that a country divided by race ought to be united, if possible, by a Supreme Court mindful of fundamental values—even if the Court was, as the constitution requires, overturning the will of the majority.
The four dissents in the landmark case on same-sex marriage, Obergefell v. Hodges, one by each of the conservative justices on today’s Supreme Court, take a very different view. With invective and hyperbole, they pour fuel on the fire of the controversy over same-sex marriage. Rather than merely state their views and disagreements, they use heated language to accuse the five-person majority of imperialism, a “putsch,” and worse.
Thus, the unprecedented calls of elected officials for open revolt against the Supreme Court—a shocking display of treason—are now accompanied by calls from within the Court itself that Obergefell is illegitimate, and the Supreme Court itself no longer worthy of full respect.
Ironically, in alleging a new low for the Court, these four justices have brought one into being. Justice Scalia has, as usual, grabbed the spotlight with juvenile taunting usually reserved for the playground. But in fact, all four opinions are shocking.
Chief Justice Roberts (joined by Scalia and Thomas) makes a solid, and unsurprising, substantive case. There is, after all, no explicit right to marriage (for gays or anyone else) in the Constitution; it is, rather, a fundamental right inferred into the Fourteenth Amendment’s guarantees of due process and equal protection. Thus, one might expect a judicial conservative like Roberts to be suspicious of expanding it, particularly when doing so runs against the expressed will of a majority of state legislatures.
But the way he chose to cast his argument ill befits his status as chief justice. “The majority’s decision is an act of will, not legal judgment,” he writes. That is absurd: the court’s decision runs thirty pages, full of all the legal judgments, precedents, and statements of principle one would expect.
But that’s just the beginning. Across four pages, Chief Justice Roberts analogizes Obergefell to the Lochner v. New York decision, one of the most notoriously wrongheaded in Supreme Court history. Lochner means nothing to most people, but to anyone who’s finished the first year of law school, it’s a swear word.
He’s still not done. The Chief Justice of the United States then states (quoting a concurring opinion by Justice Kennedy) that “the legitimacy of this Court ultimately rests ‘upon the respect accorded to its judgments.’ That respect flows from the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority today, however, is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change.”
In other words, the majority is arrogant, unrestrained, and thus not to be respected. It has an “extravagant conception of judicial supremacy.” “Those who founded our country would not recognize the majority’s conception of the judicial role.” And “The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it.”
Why not just tell the Religious Right to buy pitchforks and blowtorches? Chief Justice Roberts’ ironic opinion is immoderate in alleging immoderacy, extreme in alleging extremism.
Justice Scalia came next. And he begins thus: “I join THE CHIEF JUSTICE’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.”
It seems inevitable that rhetoric like this will stir the next Confederate flag-waving zealot to an act of, if not domestic terrorism, at least outrageous revolt. How could it be otherwise? And yet this, too, was only the first line.
The next line is, at best, disingenuous: “The substance of today’s decree is not of immense personal importance to me.” As if. This from the man who, 12 years ago, wrote in his Lawrence v. Texas dissent that the Court “has largely signed on to the so-called homosexual agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
Is that what the LGBT equality movement is about? Throughout Justice Scalia’s hysterical writing in LGBT-related cases, he has doggedly maintained that their subjects are merely “homosexual conduct” and “homosexual sodomy.” That there are, in fact, gay and lesbian people is not part of Justice Scalia’s worldview, as he has shown time and time again. There is only homosexual conduct.
And yet he says, like a “no homo” jock in a locker room, “Hey, I don’t care if you’re gay.”
Once again, just getting started. “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” That is outrageous rhetoric and an outrageous sentiment. The decision is not a “decree.” The Court is not a “Ruler”—it is an Article III interpreter of the Constitution, at its most important when it protects minorities against the will of the majority. Even demeaning Supreme Court justices as “lawyers” is a sign of disrespect.
Other statements are similar. “This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.” “What really astounds is the hubris reflected in today’s judicial Putsch.” And, “With each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”
Others have already quoted Justice Scalia’s rhetoric—“jiggery-pokery” and the rest—at length, so I won’t spend much time with it here. Because in fact, his jurisprudence is far more shocking. Watch this:
When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification.
I have quoted this passage at length so there is no misunderstanding. What Justice Scalia is saying here is that if it was “universal and uncontroversial” in 1868, it’s obviously okay now. That principle, of course, would allow states to ban interracial marriages, including that of Justice Thomas. It would allow states to bring back the doctrine that a woman surrenders all her rights to her husband upon marriage. It is shocking.
To be sure, it is also of a piece with Justice Scalia’s “originalism” and is not, as such, novel. But its strict application here places Justice Scalia in a bizarre twilight-zone of 19th century values.
Likewise, Justice Thomas’s description of “the dangerous fiction of treating the Due Process Clause as a font of substantive rights.” That “fiction” has protected rights to contraception, to abortion, and to all kinds of intimate family matters. Justice Thomas’s reactionary jurisprudence would erase half a century of gains in the area of civil rights.
And likewise Justice Alito’s talking-point dictum that the opinion will be “used to vilify Americans who are unwilling to assent to the new orthodoxy.” This, of course, is a commonplace on the Religious Right—but its appearance in a Supreme Court opinion is nonetheless shocking.
But it is Justice Alito’s parting jab which resonates the most. Obergefell, he writes, evidences “the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.” This from someone who joined an opinion overturning fifty years of due process jurisprudence, and another arguing a return to 1868’s family values.
“All Americans,” he concludes, “should worry about what the majority’s claim of power portends.” Claim of power—as if the Constitution does not empower the Court to do exactly what it has done: use reasoning and interpretation to defend constitutional rights against laws that would abridge them.
These are, as the saying goes, fighting words, and more importantly, they are words that will inspire others to fight. They are what some call “stochastic terrorism,” the broadcasting of a message so incendiary as to inspire some “lone wolf” to violence—if not actual violence, then precisely the kinds of anti-democratic, anti-American defiance we have already seen among some politicians.
Were the targets of such acts only gays and lesbians, it would be bad enough. But these four dissents have encouraged disrespect of the Supreme Court itself. Agree or disagree with the Court’s method of interpreting the Constitution, they are acts of vandalism against one of the foundations of our democracy.
By: Jay Michaelson, The Daily Beast, June 27, 2015
“Hooray For Obamacare”: The Great Conservative Nightmare Has Come True, And It’s A Beautiful Thing
Was I on the edge of my seat, waiting for the Supreme Court decision on Obamacare subsidies? No — I was pacing the room, too nervous to sit, worried that the court would use one sloppily worded sentence to deprive millions of health insurance, condemn tens of thousands to financial ruin, and send thousands to premature death.
It didn’t. And that means that the big distractions — the teething problems of the website, the objectively ludicrous but nonetheless menacing attempts at legal sabotage — are behind us, and we can focus on the reality of health reform. The Affordable Care Act is now in its second year of full operation; how’s it doing?
The answer is, better than even many supporters realize.
Start with the act’s most basic purpose, to cover the previously uninsured. Opponents of the law insisted that it would actually reduce coverage; in reality, around 15 million Americans have gained insurance.
But isn’t that a very partial success, with millions still uncovered? Well, many of those still uninsured are in that position because their state governments have refused to let the federal government enroll them in Medicaid.
Beyond that, you need to realize that the law was never intended or expected to cover everyone. Undocumented immigrants aren’t eligible, and any system that doesn’t enroll people automatically will see some of the population fall through the cracks. Massachusetts has had guaranteed health coverage for almost a decade, but 5 percent of its nonelderly adult population remains uninsured.
Suppose we use 5 percent uninsured as a benchmark. How much progress have we made toward getting there? In states that have implemented the act in full and expanded Medicaid, data from the Urban Institute show the uninsured falling from more than 16 percent to just 7.5 percent — that is, in year two we’re already around 80 percent of the way there. Most of the way with the A.C.A.!
But how good is that coverage? Cheaper plans under the law do have relatively large deductibles and impose significant out-of-pocket costs. Still, the plans are vastly better than no coverage at all, or the bare-bones plans that the act made illegal. The newly insured have seen a sharp drop in health-related financial distress, and report a high degree of satisfaction with their coverage.
What about costs? In 2013 there were dire warnings about a looming “rate shock”; instead, premiums came in well below expectations. In 2014 the usual suspects declared that huge premium increases were looming for 2015; the actual rise was just 2 percent. There was another flurry of scare stories about rate hikes earlier this year, but as more information comes in it looks as if premium increases for 2016 will be bigger than for this year but still modest by historical standards — which means that premiums remain much lower than expected.
And there has also been a sharp slowdown in the growth of overall health spending, which is probably due in part to the cost-control measures, largely aimed at Medicare, that were also an important part of health reform.
What about economic side effects? One of the many, many Republican votes against Obamacare involved passing something called the Repealing the Job-Killing Health Care Law Act, and opponents have consistently warned that helping Americans afford health care would lead to economic doom. But there’s no job-killing in the data: The U.S. economy has added more than 240,000 jobs a month on average since Obamacare went into effect, its biggest gains since the 1990s.
Finally, what about claims that health reform would cause the budget deficit to explode? In reality, the deficit has continued to decline, and the Congressional Budget Office recently reaffirmed its conclusion that repealing Obamacare would increase, not reduce, the deficit.
Put all these things together, and what you have is a portrait of policy triumph — a law that, despite everything its opponents have done to undermine it, is achieving its goals, costing less than expected, and making the lives of millions of Americans better and more secure.
Now, you might wonder why a law that works so well and does so much good is the object of so much political venom — venom that is, by the way, on full display in Justice Antonin Scalia’s dissenting opinion, with its rants against “interpretive jiggery-pokery.” But what conservatives have always feared about health reform is the possibility that it might succeed, and in so doing remind voters that sometimes government action can improve ordinary Americans’ lives.
That’s why the right went all out to destroy the Clinton health plan in 1993, and tried to do the same to the Affordable Care Act. But Obamacare has survived, it’s here, and it’s working. The great conservative nightmare has come true. And it’s a beautiful thing.
By: Paul Krugman, Op-Ed Columnist, The New York Times, June 25, 2015
“As Dangerous As Thomas And Scalia”: Meet The Right-Wing Religious Zealot Who’d Rather Follow The Bible Than The Law
Happiness is boring a hole in your Hebrew slave’s ear with an awl, or so might well say Alabama Supreme Court Chief Justice and Baptist zealot Roy Moore.
Before I get to Moore and his grotesque, faith-lathered absurdities, though, a quick digression. Not a week goes by without our egregiously pious politicians outraging rationalist champions of the Constitution and the Bill of Rights.
Mike Huckabee, Republican presidential candidate and onetime Southern Baptist preacher, indicated he would, as head of state, obey the Supreme Being, not the Supreme Court, at least as regards same-sex marriage.
His rival and fellow evolution-naysayer Ben Carson urged his Christian co-religionists to stand up to “progressive bullying,” even though Christians account for seven out of ten Americans, and hardly amount to some beleaguered minority nonbelievers could push around, even if they wanted to.
And the Republican National Committee continues its affiliation with the Christian fundamentalist activist group, American Renewal Project, whose director, David Lane, is now calling for the establishment of Christianity as “the official religion of America.” Lane may have taken cues from that morose stalwart of antipathetic reaction, Supreme Court Justice Clarence Thomas. Don’t forget, a year ago Thomas, a Roman Catholic, aired the malodorous opinion that the First Amendment (which starts with “Congress shall make no law respecting an establishment of religion”) “probably” – italics mine, yes, sic, only “probably” – “prohibits Congress from establishing a national religion,” but should not hinder individual states from doing so.
With justices like Thomas, and if a Republican wins in 2016, the Supreme Court may well end up serving as the Doric-columned ossuary of the remains of our once gloriously godless Republic.
Now we come to Alabama Chief Justice Roy Moore. Speaking last week at the Family Research Council, a hyper-conservative Christian lobbying group in Washington, D.C., Moore defined the pursuit of happiness as a by-product of observing the often malicious edicts and baleful pronouncements pervading cock-and-bull fables originating with pastoral, semi-nomadic primitive tribes two or three millennia ago in a land far, far away; that is, the Bible. Moore declared, in obtusely baroque verbiage, that “It’s laws of God, for He is so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual that the latter cannot be obtained but by observing the former, and if the formerly be punctually abated it cannot help but induce the latter. You can’t help but be happy if you follow God’s law and if you follow God’s law, you can’t help but be happy. We need to learn our law.”
Translation: doing what the Bible says makes you happy.
Some readers might recall Moore from 2003, when he fought a federal injunction ordering him to remove a monument to the Ten Commandments he had arranged to be erected within the Alabama Judicial Building in Montgomery. Denouncing federal judges who held that the “obedience of a court order [is] superior to all other concerns, even the suppression of belief in the sovereignty of God,” Moore refused to comply, and was sacked from the court. Thousands of his supporters descended on the site. More than a year passed before the authorities managed to truck away the offending chunk of granite, a monstrosity so heavy it threatened to crash through the building’s floor.
A decade later, already a folk hero to the brute masses of his state afflicted with the malady of faith, Moore, as unrepentant as ever, found himself reelected to Alabama’s highest tribunal. Once again, he could not sit still. When the Supreme Court in Washington legalized same-sex marriage in Alabama last January, Roy forbade state employees and probate judges from carrying out such unions. In a contentious interview with CNN, Moore then proclaimed that “Our rights contained in the Bill of Rights do not come from the Constitution, they come from God.” He denied he was defying the Supreme Court; rather, he was protecting marriage, “an institution ordained of God.” His allegiance, as should now be clear, is not to the Constitution he has sworn to uphold, but to gobbledygook myths and a bogus Tyrant in the Sky. In other words, to the Bible and God.
One might be tempted to dismiss Moore as yet another faith-mongering, red-state ignoramus, but his status as chief justice should give us pause. Moreover, for decades now, those of the religious right have been laboring to force their superstitions, by hook or by crook, on the rest of us. In far too many states, for example, they’ve succeeded in legislatively thwarting Roe v. Wade to restrict women’s reproductive rights. Just last year, they won a Supreme Court case legalizing prayer in town meetings. And if non-belief is steadily gaining ground, those who remain Christian are increasingly evangelical — which is to say, politically active and well-funded. We thus find our cherished secularism under credible, and growing, threat.
In view of this, it behooves us to take Moore’s advice and look at what the Bible actually says. But which part are we to review, the ferociously censorious Testament 1.0, or its supposedly more clement 2.0 update?
Both. The Bible, often obscure and contradictory, could not be clearer about this. In Matthew 5:18-19 Christ decrees: “till heaven and earth pass away . . . whoever then relaxes one of the least of these commandments [in the Bible] and teaches men so, shall be called least in the kingdom of heaven.” In Luke 16:17, He reminds us that, “It is easier for Heaven and Earth to pass away than for the smallest part of the letter of the [Bible’s] law to become invalid.” His cohort Peter informs us (in Peter 2: 20-21) that “there is no prophecy of scripture that is a matter of personal interpretation.” Disregard, then, those who would have you think that the Old Testament has, in effect, expired, as well as mealy-mouthed apologists who say it’s all a matter of how you read the text. And remember, 28 percent of Americans take the Good Book as literal truth, talking snakes and jabbering donkeys and all. It’s not much of a jump to go from literal truth to literal application.
The Bible deluges us with a hailstorm of injunctions, far in excess of the Ten Commandments (first presented in Exodus 20:22-28, but also, with inexplicable alterations and sundry additions, in Exodus 34 and Deuteronomy 5). Aside from don’t kill, murder, or covet wives and asses, and so on, just what does the Bible ordain?
For starters, slavery. Much of Exodus 21 is basically a slaveholder’s manual and contains my opening line about boring through your Hebrew slave’s ear with an awl, which is what it says he deserves if he should fail to decamp on schedule. (Servitude is to last six years.) After departure, the slave’s wife and children belong, of course, to you, his master. If you need cash, feel free to sell your daughter as a sex slave. Beat and have sex with your slaves, but whatever you do, don’t “smite” their eyes or their teeth, or you’re obliged to free them. Remember, though, that Christ orders your slaves to obey you with “fear, trembling, and sincerity, as when [they] obey the Messiah” (Ephesians 6:5), so don’t spare the rod unnecessarily. Exodus (21:29) also warns you to keep your livestock in check. Don’t let your ox gore anyone, or you and the beast must be stoned to death. Do redeem the firstling of an ass with a lamb (whatever that means), but if you don’t, break the former’s neck. Otherwise, don’t “oppress” any “sojourners,” “vex” any strangers, or “afflict” any widows or “fatherless children.” Etcetera.
If believers require orders from some “holy” book to keep from doing these things, as those who claim our morality comes from God suppose, they should be kept off the streets, and certainly away from children.
When it comes to His earthly visiting quarters, the Lord legislates with lavish abandon, proffering binding instructions for ark-building, tabernacle-adornment, and altar-construction, on which His subjects are to scant nothing — not gold, not silver, not bronze. U.S. lawmakers chose to lighten the expense burden by providing churches with tax exemptions. Ancient Israelites found recompense in celestially sanctioned regional hegemony over the “Amorite, and the Canaanite, and the Hittite, and the Perizzite, and the Hivite, and the Jebusite” (Exodus 34). Israelites were divinely enjoined to “destroy their altars, break their images, and cut down their idol poles . . . . For I will cast out the nations before thee, and enlarge thy borders.” This criminal pronouncement from long ago inspires radical Jewish settlers today and helps maintain the insolubility of the Israeli-Palestinian impasse.
God then hits red-staters where it hurts, ordaining that “Ye shall not make any cuttings in your flesh for the dead, nor print any marks” — tattoos — “upon you: I am the LORD” (Leviticus 19:27). Brothers, no mullets: “Do not cut the hair at the sides of your head or clip off the edges of your beard” (Leviticus 19:27). Nevertheless, dress nattily: “Do not wear clothes of wool and linen woven together” (Deuteronomy 22:11). Sisters, betake yourselves to a nunnery — for clothes, if nothing else. “Women should adorn themselves modestly and sensibly in seemly apparel, not with braided hair or gold or pearls or costly attire” (l Timothy 2:9).
Before setting out to follow Jesus, remember to violate Commandment 5 and abhor your parents. “If anyone comes to me and does not hate father and mother, wife and children, brothers and sisters — yes, even their own life — such a person cannot be my disciple” (Luke 14:26). Do, however, abhor discreetly, for if you curse Mom and Dad aloud, they have the right to cut you down on the spot (Leviticus 20:9). Don’t talk with any wizards (ibid, 20:6) or get it on with your sister-in-law, or eat fat (ibid 3:17), or attend church for thirty-three days after birthing a boy (you’ll be unclean), or sixty-six days if it’s a girl, you’ll be doubly unclean (Ibid 12:4-5).
I could go on and on, but you get the point. Thomas Jefferson described “the Christian god [as] a being of terrific character — cruel, vindictive, capricious, and unjust.” In modern parlance, the Lord is psychotic, and stands in need of urgent psychiatric treatment for an out-of-control Type A personality, pathological solipsism and wanton sadism. It should surprise no one that damnable nonsense is His rule book’s warp and woof, with even the supposedly more humane New Testament deserving disdain as a farrago of “forgeries and lies” (to quote Thomas Paine). The Bible, in the end, merits mercilessly swift dispatch into the dustbin of history, or preservation as an anthropological curiosity, nothing more. Anyone considering it our wellspring of joy is not to be trusted.
So how is it that Chief Justice Moore suffers no opprobrium for saying that you “can’t help but be happy if you follow God’s law?”
Because we commit a sort of secular sin of omission and let him, either out of mistaken notions of politesse or the erroneous belief that criticizing religion as ideology equates with insulting someone personally. This has to stop. Every time we encounter faith-deranged individuals spouting supernatural nonsensicalities, we should request explanations and evidence. We might also cite the above-noted biblical passages and ask how they possibly square with modern life in a developed country. If they say those parts don’t apply nowadays, ask them which verses in the Bible permit them to so pick and choose. By steady, patient questioning, you will expose faith for what it is: finely crafted garbage.
We should not suffer evangelical fools gladly or allow them to determine the boundaries of discourse. We should take to heart the key maxim of British philosopher and mathematician William K. Clifford: “It is wrong, always, everywhere, and for anyone, to believe anything upon insufficient evidence.” We should point out that we have no problem with privately held religious beliefs, but we will protest and object to any attempt to impose such beliefs or restrictions deriving thereof on us or others.
Resist. You have a world of hard-won rights and secular sanity to preserve, and everything to lose.
By: Jeffrey Tayler, Contributing Editor at the Atlantic; Salon, May 31, 2015
“The Framers Distrusted The Corporate Form”: Toxic Law; How Corporate Power And ‘Religious Freedom’ Threaten Democracy
Corporations from Apple and Angie’s List to Walmart and Wells Fargo exercised their power last week against laws that give aid and comfort to bigots. But don’t be too quick to praise their actions.
Commendable as these corporate gestures were, they also illustrate how America is morphing from a democratic republic into a state where corporations set the political agenda, thanks to a major mistake by Democrats in Congress. What they did has resulted in Supreme Court decisions that would infuriate the framers of our Constitution.
The framers distrusted the corporate form. And they made plain their concerns about concentrations of economic power and resulting inequality, worrying that this would doom our experiment with self-governance. Surely they would be appalled at the exercise of corporate influence last week. For the companies opposing “religious freedom” laws in Arkansas and Indiana were concerned with human rights only in the context of profit maximization, which is what economic theory says corporations are about.
Where are the corporate actions against police violence? Or unequal enforcement of the tax laws, under which workers get fully taxed and corporations literally profit off the tax laws? Or gender pay discrimination? And when have you heard of corporations objecting to secret settlements in cases adjudicated in the taxpayer-financed courts, especially when those settlements unknowingly put others at risk?
The so-called religious freedom restoration statutes in Arkansas, Indiana and 18 other states reflect a growing misunderstanding of the reasons that American law allows corporations to exist, a misunderstanding that infects a majority on our Supreme Court.
Corporations, which have ancient roots, serve valuable purposes that tend to make all of us better off. We benefit from corporations, but they must be servants, not masters.
Confining corporations to the purposes of limiting liability and creating wealth is central to protecting our liberties, as none other than Adam Smith warned 239 years ago in The Wealth of Nations, the first book to explain market economics and capitalism.
There is no fundamental right to create, own or operate any business entity that is a separate person from its owners and managers. Corporations exist only at the grace of legislators.
But in 21st-century America, corporations are increasingly acquiring the rights of people, which is the product of an unfortunate 1993 law championed by Democrats that now helps bigots assert a Constitutional right to discriminate in the public square.
Concern about corporations and concentrated power that diminishes individual liberties has become increasingly relevant since 2005, when John Glover Roberts Jr. was sworn in as chief justice of the United States.
Roberts and other justices who assert a strong philosophical allegiance to the framers’ views have been expanding corporate power in ways that would shock the consciences of the founders — especially James Madison, the primary author of our Constitution, Thomas Jefferson and John Adams.
In 2010, the Supreme Court ruled that corporations could spend unlimited sums influencing elections in the Citizens United decision. Now, as a practical matter, no one can become a Democratic or Republican nominee for president without the support of corporate America.
And, central to the Arkansas and Indiana legislation, the Supreme Court last year imbued privately held corporations with religious rights in the Hobby Lobby case.
The Roberts court invented all of these rights. Principled conservatives should denounce such decisions as “judicial activism,” yet nary a word of such criticism appears in right-wing columns and opinion magazines.
Today’s corporations have their roots in ancient trusts created to protect widows and orphans who inherited property. Hammurabi’s Code provided for an early version of trusts. Later the Romans created proto-corporations to manage public property and the assets of those appointed to oversee the far realms of the empire.
Managers of these early corporations had very limited authority, what the law calls agency, over the assets entrusted to them. Today, corporate managers have vast powers to buy, sell and deploy the assets they manage. They can do anything that is legal and demonstrates reasonable judgment.
Spending money to elect politicians (or pass anti-consumer laws) is perfectly fine under current law if it advances the profit-making interests of the company. Last week, we saw companies denounce bigotry against LGBTQ people, but of course they did so in terms of protecting their profits.
Walmart, the nation’s largest employer, opposed signing the Arkansas bill into law: “Every day in our stores, we see firsthand the benefits diversity and inclusion have on our associates, customers and communities we serve.” Apple CEO Tim Cook said, “America’s business community recognized a long time ago that discrimination, in all its forms, is bad for business.”
But creating efficient vehicles to create wealth by engaging in business does not require political powers, as none other than Supreme Court Justice William Rehnquist noted in a dissent.
Where we have gone furthest astray under the Roberts court is in last year’s Hobby Lobby decision. It imbued privately held corporations with rights under the First Amendment, which says, in part, “Congress shall create no law respecting the establishment of religion or prohibiting the free exercise thereof.” Based on Hobby Lobby, both the Arkansas and Indiana laws were crafted to provide a defense for bigoted actions by businesses.
Yet laws requiring businesses to serve everyone, without regard to their identity, do not inhibit the free exercise of religion. A law that requires a florist or bakery to serve people in same-sex weddings as well as different-sex weddings may trouble the merchant, but it does not inhibit religious activity.
The corporate power on display in the so-called religious freedom restoration cases stems from a Supreme Court case that upheld the doctrine of laws of general applicability.
In 1990, the Supreme Court held that Oregon jobless benefits were properly denied to two Native Americans who worked at a drug rehab facility and who also, as part of their well-established religious practice, ingested peyote, a controlled substance.
Justice Antonin Scalia, who claims to follow the original intent of the Constitution’s drafters, wrote the opinion. He held that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability’” such as denying jobless benefits to drug users.
Scalia cited an 1879 Supreme Court ruling in a test case known as Reynolds in which a Brigham Young associate asserted that federal laws against polygamy interfered with the “free exercise” of the Mormon brand of Christianity.
In that case, as Scalia noted, the high court had rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself,” the conservative justice wrote.
Two years later, Congress undid that sound decision with passage of the Religious Freedom Restoration Act, a sloppily crafted bill introduced by then-Rep. Chuck Schumer (D- NY), and championed in the Senate by another Democrat, the late Ted Kennedy (D-MA).
It was this law, undoing Scalia’s sound Supreme Court decision, which enabled corporations to exercise their power for a particular cause that is in their interest, namely ending bigotry. Such actions may be laudable, yet still dangerous.
Corporations are valuable and useful vehicles for creating wealth. But they are not and never should be political and religious actors. As artificial “persons,” they should not be imbued with political or religious rights.
We need to keep corporations in their place. Otherwise, next time, their profit maximization may work against your liberties.
By: David Cay Johnston, The National Memo, April 4, 2015
“Congress Might Step In To Fix The Problem”: How Conservative Supreme Court Justices Harmed Their Own Anti-Obamacare Cause
Wednesday’s Supreme Court oral arguments made it evident that at least some conservative justices are worried about the disruption they’ll create if they rule for the challengers in King v. Burwell and void Affordable Care Act subsidies in 34 states.
The justices and lawyers themselves didn’t dwell on humanitarian costs, but those most hostile to the law repeatedly sought to downplay the consequences of an adverse ruling.
The plaintiffs’ lawyer, Michael Carvin, argued against all logic to incredulous liberal justices that eliminating subsidies wouldn’t leave states saddled with a punishing regulatory regime. Antonin Scalia got laughed out of court (sort of) for claiming Congress might step in to fix the problem. Samuel Alito even intimated that states might step in and establish their own exchanges. The Court could even lend them several months time to do so.
“It’s not too late for a state to establish an exchange if we were to adopt Petitioners’ interpretation of the statute,” Alito said. “So going forward, there would be no harm.”
If his suggestion was designed to appeal to skeptical conservatives, like Chief Justice John Roberts, and Anthony Kennedy, he may have harmed his own cause.
Alito’s comments evoke the image of many or most of the states that opted in to federally facilitated exchanges scrambling to reverse their decisions—to keep subsidies flowing and preserve the viability of their individual insurance markets.
That would stem the disruption. But it would also underscore the anti-federalist concerns Kennedy raised during oral arguments in dramatic fashion. What’s better evidence of coercion than sending a bunch of states into a blind panic to do something they weren’t originally inclined to do?
Supporters of the challenge might argue that the source of coercion in that case would be the disappearance of unauthorized subsidies, rather than the underlying scheme in the law. Essentially that this would all be the Obama administration’s fault. But Kennedy was explicit in his admonitions that the coercion problems with the challengers interpretation of ACA run deeper than money transferred by the federal government.
“The states are being told either create your own exchange, or we’ll send your insurance market into a death spiral,” Kennedy said. “We’ll have people pay mandated taxes which will not get any credit on on the subsidies. The cost of insurance will be sky high.”
To dull the implications of Kennedy’s concerns, conservatives enlisted Oklahoma’s Attorney General, Scott Pruitt, who banged out an op-ed arguing that his own state’s experience contradicts the premise that the ACA-as-written is unconstitutionally intrusive.
“Oklahoma knew the consequences of its decision but was not coerced into cooperating with implementation of the Affordable Care Act,” Pruitt wrote.
The argument lacks credibility coming from someone who adopted his position, on the advice of conservative activists, precisely because “in states that have not established their own exchanges, the structure of the ACA will crumble.” Seeking Pruitt’s guidance on the ACA’s impositions on states is a bit like taking flight lessons from a kamikaze pilot.
But Pruitt’s point also doesn’t allay Kennedy’s substantive concerns. His interpretation of the ACA arose not from its plain text, but, again, from the input of meddling activists trying to destroy Obamacare. It doesn’t follow from the fact that Pruitt is keyed in to conservative movement strategy that the ACA provides states clear notice that its subsidies come with major strings attached. Moreover, Kennedy’s problem isn’t just with states responding to the threat, but with the threat itself. “If petitioners’ argument is correct,” Kennedy said, “this is just not a rational choice for the states to make.” In other words, even if several states continue to resist ACA implementation after an adverse ruling, there’s still a problem here, because the federal government shouldn’t be allowed to confront states with such onerous choices in the first place.
Assuming Kennedy meant what he said about coercion, he has several options, most of which augur well for the ACA. He could allow the challengers’ anti-federalist construction of the law to guide him to a better available interpretation (i.e. the government’s). He could determine that the challengers’ construction should be avoided in favor of one that isn’t unconstitutional. He could essentially rewrite it, as the Court rewrote the ACA’s Medicaid expansion, to sever the offending phrase. Or, less auspiciously, he could find for the challengers, and leave the subsidy condition on the books, anticipating that a constitutional challenge will arise as a result.
But the fact that Alito and Scalia assumed a ruling for the challengers would send political actors scrambling for a fix doesn’t advance their ends with anyone concerned about coercion. It actually just proves the point.
By: Brian Beutler, The New Republic, March 6, 2015
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